Dismissal motions in pay raise lawsuit heard in Tribal Court

by Jun 10, 2016NEWS ka-no-he-da0 comments





Motions to dismiss the lawsuit (Eastern Band of Cherokee Indians for Justice & Accountability v. Henry et. Al., Case No. CV 15-475) on the issue of the disputed pay raises approved by Tribal Council in October 2014 were heard in Cherokee Tribal Court on Wednesday, June 8.

The lawsuit was filed in October 2015 by a group known as the Eastern Band of Cherokee Indians for Justice & Accountability (EBCIJA).  Resolution No. 261 (2014), passed on Oct. 14, 2014, is the main point of contention in the lawsuit.  That legislation approved the FY2015 EBCI tribal budget and included pay raises for the members of Tribal Council which the EBCIJA alleges is in violation of Section 117-15(a) which states, “Pay increases for the Tribal Council members shall not exceed the amount appropriated in that fiscal year for Tribal employees.  These pay increases shall not take effect until the next elected Tribal Council members are seated…”

In all, six Motions to Dismiss were discussed on Wednesday and listed various reasons for dismissal ranging from sovereign immunity to the plaintiffs lack of standing.

The six motions to dismiss, which were discussed during Wednesday’s hearing, state:

  • First Motion to Dismiss: “Defendants move to dismiss Plaintiffs’ claims on the grounds that Plaintiffs lack standing.” (One Feather Note: The Legal Information Institute from the Cornell University Law School states, “Standing, or locus standi, is a capacity of a party to bring suit in court…only those with enough direct stake in an action or law have ‘standing’ to challenge it.”)
  • Second Motion to Dismiss: “…said claims are barred in whole or in part by sovereign immunity, public official immunity, absolute immunity, legislative immunity, and/or other immunity doctrines.”
  • Third Motion to Dismiss: “…Plaintiffs have failed to exhaust their administrative remedies, including by pursuing potentially available relief directly from the Tribal Council.”
  • Fourth Motion to Dismiss: “Defendants move to dismiss Plaintiffs’ claims against Defendants Brown, Owle, Parker, and James Taylor on the grounds that Plaintiffs’ Complaint fails to state a claim upon which relief may be granted against these Defendants.”
  • Fifth Motion to Dismiss: “Defendants move to dismiss Plaintiffs’ claim for civil conspiracy on the grounds that it fails to state a claim upon which relief may be granted as it is not recognized by Cherokee law.”
  • Sixth Motion to Dismiss: “…Plaintiffs have failed to join one or more necessary parties.”

“These are issues that are really important to the Tribe,” Meghann K. Burke, Asheville-based attorney for the plaintiffs in the case, said following Wednesday’s hearing.  “We are confident that Judge Barrett, who has said that she will take them under advisement, will issue a very thoughtful opinion.  We are grateful to have had our day in court and look forward to continuing this case whether it’s through the discovery phase or on appeal which is something that we might consider if we lose and something that we’d imagine the other side would like to have these issues resolved by the highest court.”

Hearing the case on Wednesday was Judge Sharon Tracey Barrett who was sworn in earlier that morning by Cherokee Supreme Court Justice Bill Boyum as a Temporary Judge/Justice.  The defendants, none of whom were present on Wednesday, were represented by Carleton Metcalf the Van Winkle Law Firm in Asheville.

During Wednesday’s hearing, Metcalf stated “the plaintiff in this suit lacks standing to proceed”.  Citing Hunt v. Washington State Apple Advertising Commission (1977 Supreme Court case), he argued that the plaintiffs did not meet the requirements of standing.  (Note: According to the Cornell University Law School, “Standing, or locus standi, is capacity of a party to bring suit in court. State laws define standing. At the heart of these statutes is the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is redressable.”)

Burke countered by citing NAACP v. Alabama (1958) in which the Supreme Court ruled in favor of the organization and found that the state had acted improperly and had violated the 14th Amendment when forcing the organization to divulge its membership lists.  “We argue that all members of the Tribe are affected when members of Tribal Council break the law for personal gain.”

Judge Barrett did ask for some clarification on the EBCIJA group itself. “What is the association?” she asked. “I think that in order to have standing that we have to have more clarity on what it is.”

Burke stated that the organization has been around for decades and there is a broader range of issues and activities that the group is concerned about but that it has been “razor-beamed” focused on the pay raise issue for this lawsuit.  She said that many members of the organization were willing to take the stand if necessary to prove that it was a true association of EBCI tribal members.

Another issue discussed at length during Wednesday’s hearing was sovereign immunity.  Metcalf cited a recent case in Cherokee Tribal Court (Teesateskie v. EBCI et al.) and commented that it applies to this lawsuit, “Sovereign immunity has not been waived here.  It has been in effect and continues to be in effect.”

He also argued that the actions of Tribal Council regarding the pay raises would be covered under legislative immunity.  “All of that is quintessential legislative action which would be considered legislative immunity.”

Burke countered that Tribal Council did not qualify for either sovereign immunity nor legislative immunity because of the alleged illegality of their actions.  “The defense lacked the authority to do what they did.  We contend that an illegal act is not acting in their official capacity…we don’t argue that sovereign immunity was waived.  We argue that it doesn’t apply.”

Judge Barrett asked, “Is there not a political remedy that is not a better remedy than a judicial remedy?”  She then inquired about the possibility of impeachment hearings.

Burke responded, “They would have to impeach themselves, and we just don’t think that would happen.”

She said the heart of the case lies with, “Is Res. 261 lawful or not?  What we’re trying to do here is to right a wrong.” Burke said the relief sought by her clients is “declaratory and injunctive” and only seeks to return funds to the Tribe itself and not to the organization itself or to any individuals.

Metcalf related during the hearing that the defense was not proceeding with the third motion to dismiss.

Judge Barrett concluded the proceedings by thanking both parties and informing them she would take their arguments under advisement and render her decision soon.


Named in the original lawsuit are former Principal Chief Michell Hicks and former Vice Chief Larry Blythe.  Also, the following are named as defendants in the lawsuit and are being sued in their individual capacity:  former Tribal Council Chairwoman Terri Henry, Tribal Council Chairman Bill Taylor, former Birdtown Rep. Gene “Tunney” Crowe Jr., Yellowhill Rep. Alan B. Ensley, Birdtown Rep. Albert R. Rose, Painttown Rep. Virginia Lee Bradley (Tommye) Saunooke, former Big Cove Rep. Perry Shell, Cherokee County – Snowbird Rep. Adam Wachacha, former Yellowhill Rep. David Wolfe, former Cherokee County – Snowbird Rep. Diamond Brown (now deceased), former Tribal Council Chairman James “Jim” Owle, former Wolftown Rep. Michael Parker, and former Big Cove Rep. James “Bo” Taylor.  Former EBCI Deputy of Finance Kim Peone was named in the original lawsuit but has been substituted for Eric Sneed, current EBCI Secretary of Finance, who is now in that position.

Wolftown Rep. Bo Crowe was the only one to vote against Res. No. 261 with Big Cove Rep. Teresa McCoy and Cherokee County – Snowbird Rep. Brandon Jones both being absent.  None of those three representatives are named in the suit.

According to records from the EBCI Office of Budget and Finance that were attached to the official court documents filed in the original suit, the pay for the Tribal Council Chairman increased from $75,000 to $86,400.  The pay for the Vice Chairman increased from $72,500 to $83,500, and the pay for the other Tribal Council representatives increased from $70,000 to $80,600.  The court document alleges that defendants Taylor, Brown, Owle and Parker all received “one-time lump-sum payments”.

The EBCIJA sought a waiver of sovereign immunity through Res. No. 47 (2015) to pursue this lawsuit, but that measure was killed by Tribal Council on Thursday, Oct. 29, 2015.